PRC Exploring New Rules About Private Express Statutes

The Private Express Statutes can be traced back to 1792 when Congress, empowered under the Constitution to “establish post offices and post roads,” granted the federal government sole authority over the carriage and delivery of letter mail.  That authority, now codified in 18 USC 1693-1696 and 39 USC 601-606, originally enabled the Postal Service to suspend the statutes if that would be in the public interest.

The USPS implemented an exception in 1979, for example, to allow private companies, notably Federal Express and United Parcel Service, to carry “extremely urgent” letters outside the mail subject to conditions including payment of postage.  (The PES apply only to “letters,” so the private carriage of other matter – like newspapers and packages – is open to non-USPS providers.)  That authority ended in 2006.

The PRC

The activity of the Postal Regulatory Commission in this area so far has been a winding road.

On February 7, 2020, the Postal Regulatory Commission issued Order 5422 as “advance notice of proposed rulemaking to seek input from the public about what regulations promulgated by the Commission may be necessary to carry out the requirements of 39 USC 601, ‘Letters carried out of the mail’ ... ”  In that document, the PRC also noted that

“In 2006, Congress passed PAEA to clarify the limited statutory exemptions to the monopoly.  In addition to adding price and weight limits as exceptions ... Congress also added a ‘grandfather clause’ ... to authorize the continuation of private activities that the Postal Service had permitted by regulations to be carried out of the mail. ... Congress also eliminated the Postal Service’s authority to adopt any future regulations creating additional exceptions or defining the scope of the postal monopoly. ... Congress instead gave the Commission the authority to promulgate ‘any regulations necessary to carry out this section [601].’  To date, the Commission has not promulgated any regulations pursuant to Section 601(c), and issues this advance notice of proposed rulemaking to explore potential options for doing so now.”

The PRC listed fourteen questions on which it sought answers from commenters over the following two months.

However, in Order 5930, issued July 2, 2021, the commission stated that “Based on the comments received, the Commission found it necessary to gather more information from the public before promulgating regulations under Section 601 and therefore, that proceeding is held in abeyance until the conclusion of this inquiry.”  That order opened a new docket, PI2021-2, to “further input from the public about what regulations promulgated by the Commission may be necessary to carry out the requirements of 39 USC 601.”

On November 24, 2021, the commission issued Order 6046 stating that because it had “received adequate input from the public in order to propose regulations” under the 2020 proposed rulemaking docket, “no further input” was needed and so it closed PI2021-2.  Concurrently, it issued Order 6047 reopening the original 2020 rulemaking docket.

In that order, it summarized the procedural history of the docket and the comments received on the subsequent inquiry before presenting a description of the rules it as proposing, stating:

“The Commission notes that a majority of commenters across both dockets cautioned against substantive changes.  These commenters generally cited the clarity of the current guidelines and other pressing issues related to the Postal Service and in the mailing industry.  To maintain stability, the Commission finds that no substantive regulations are necessary at this time. ...

“Nonetheless, the Commission finds it necessary to provide some clarity on the statute, and its relationship with the Postal Service’s regulations.  The Commission also finds it necessary to provide the public a process to seek clarification of the statute or the letter monopoly should the need arise in the future.  Thus, the Commission proposes the following rules.

“First, the Commission proposes a provision stating that certain Postal Service regulations in parts 310 and 320 are within the scope of these new rules and subject to Commission interpretation. ... The Commission also proposes a provision that if there is a conflict between the Postal Service regulations and Section 601, Section 601 takes precedence.

“Next, the Commission proposes a provision explicitly stating that the Postal Service no longer has authority to issue regulations interpreting, suspending or otherwise defining the scope of the letter monopoly.  These provisions also include a prohibition on issuing guidance or entering into agreements purporting to do the same.  The Commission also proposes a provision stating that it has the sole authority to promulgate regulations necessary to carry out Section 601 ... .

“Finally, the Commission proposes a provision allowing interested parties to seek interpretation of Postal Service regulations or statutory language by filing a rulemaking petition with the Commission, or requesting an advisory opinion from the Commission’s General Counsel. ...”

Comments were invited, due by January 3, 2022.

Questions

The issuance of the recent order reopening the 2020 rulemaking docket prompted questions among industry groups trying to discern the motives for the commission’s interest.

It may be reasonable to conclude that the commission isn’t just looking for something to do.  Rather, the PRC is responding to a real or perceived need to act now – whatever that may be – even though the authority to do so was given to it by the postal reform legislation enacted fifteen years ago.

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